US: Catch-22 for Asylum Seekers

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The US government stands alone among developed countries in denying asylum seekers both employment authorization and governmental assistance, Human Rights Watch and the Seton Hall University School of Law’s Center for Social Justice said in a report released today.

What the Congress of the United States Should Do

Enact legislation to amend the Immigration and Nationality Act (INA) to allow an asylum seeker to simultaneously file an asylum application and an application for work authorization, thereby eliminating the prolonged waiting period for work authorization

“The US government leaves many asylum seekers little choice other than begging or working illegally to survive,” said Bill Frelick, director of the refugee program at Human Rights Watch. “The work and aid restrictions imposed on asylum seekers, apparently to discourage frivolous applications, harm and degrade the very people who most need support and protection.”

US immigration law prohibits asylum seekers from working legally for 150 days after filing their applications – plus an additional 30 days to process the application – unless they are granted asylum before that time is up. The clock that counts those days is stopped any time the government determines that the applicant has delayed the proceedings. In practice, though, it is unclear precisely what stops and restarts the clock.

The problem has affected almost all asylum seekers. In 2011, the clock had stopped at some point for 262,025 people – 92 percent of all pending cases – according to the federal Executive Office of Immigration Review. Once the clock stops, so does the opportunity to apply for work authorization, leaving too many asylum seekers without any means to sustain themselves for many months or years.

Asylum seekers are also ineligible to receive nearly any type of government benefit while awaiting a decision on their cases. The United States stands alone among developed countries in denying both employment and governmental assistance.

Khaled M., an asylum seeker from Egypt, said he was unable to work or receive public assistance for his family for nearly five years. They struggled to find food and shelter.

There were nights when the family had to sleep in a bus station or airport. During the hottest week of one summer, Khaled, his wife, and two small children were evicted and found themselves on the streets without shelter or food.

Josiane F., a 27-year-old rape survivor from Rwanda, said that not being able to work year after year “kills you emotionally.” She said, “Just sitting on your own, one year, two years, three years, five, doing nothing, just sitting there, kills you. I was so depressed.”

Josiane also found trying to navigate asylum and work authorization laws and procedures without legal assistance extremely difficult. She applied for asylum without the help of legal counsel in May 2008. She said that the asylum application she submitted on her own had a lot of errors. “Maybe if I had a lawyer that time, I would have said it differently,” she said. For the next four years while her asylum claim was pending, Josiane was not allowed to work.

“It is unreasonable to expect asylum seekers to manage the complicated process, given the reality that they are not entitled to court-appointed counsel in the United States,” said Lori A. Nessel, Professor of Law and Director of Seton Hall Law School’s Center for Social Justice. “Requiring asylum seekers to wait for work authorization places an unfair burden on them and their families.”

Human Rights Watch and the Center for Social Justice compared the treatment of asylum seekers in relation to work authorization and benefits with the treatment of other vulnerable immigrant groups in the United States. Immigrants seeking other types of humanitarian relief, such as temporary protected status, may apply simultaneously for work authorization.

“The prohibition on work authorization and social benefits for asylum seekers under US law is incompatible with international human rights standards and inconsistent with the treatment of other vulnerable groups,” Nessel said.

On July 27, 2013, the US Senate passed The Border Security, Economic Opportunity, and Immigration Modernization Act (bill S.744), which would eliminate the procedure of stopping the asylum “clock” during the application period. The House has not yet considered such an amendment.

“The Senate bill improves current law by eliminating the asylum clock, but it would retain the 180-day bar on work authorization from the time an asylum application is filed,” Frelick said. “When considering comprehensive immigration reform, Congress should instead allow asylum seekers to file for work authorization at the same time they file their asylum applications unless their claims are found to be frivolous.”